Tyler Gregory Okonma, the American rapper and music video director better known as Tyler the Creator, added fashion designer to his repertoire in 2011 when he launched his collection, Golf Wang. The line has gained quite a bit of momentum since its start, with Okonma staging his first fashion show in Los Angeles this summer. Earlier this month, Okonma introduced a multi-piece capsule collection consisting of off-white hued hoodies, button-up shirts, pants, and boxers, among others wares, all bearing an interesting multi-colored polka dot print.

What all of the articles dedicated to the latest Golf Wang offerings fail to note is that there is a seeming similarity at play here. The art aficionados amongst us would likely draw a comparison to Damien Hirst’s own polka dot printed designs. While it is easy to write off both men’s designs as “just polka dots” and likely not subject to intellectual property protection, that is not necessarily the most prudent course of thought. As the legally-minded know, the threshold for originality is quite low under U.S. copyright law, and thus, even arguably simple designs may be subject to copyright law. With that in mind, a polka dot-infused print very well may be protected by copyright law and its owner awarded the exclusive right to make, sell, and display such designs.

As we know from the Prince Group, Inc. v. MTS Products case, a copyright matter heard in 1997, the U.S. District Court for the Southern District of New York found that a particular polka dot fabric pattern met the low creativity bar required to be protected by copyright. More recently, in the Olem Shoe Corp. v. Washington Shoe Corp. case, which was heard by the U.S. District Court for the Southern District of Florida, the district court found (and the Eleventh Circuit Court of Appeals affirmed) that “the particular arrangement of different sized dots at varying distances along vertical and horizontal planes… [was] an artistic decision that distinguishes Ditzy Dots from generic polka dots.”

Horst's Apotryptophanae (left) & Golf Wang shorts (right)

HIRST’S POLKA DOTS

Rows of colored spots, a.k.a. polka dots, have been a common design feature on clothes and goods since at least the mid-nineteenth century, but Hirst has certainly popularized them. According to famed gallerist Larry Gagosian, Hirst invented the spot series to an extent, telling the New York Times in 2011: “These paintings have entered popular culture. You see them in advertisements, on clothes, on cars. They’ve become part of our visual vocabulary.”

Writing for the Observer in 2012, art critic Andrew Russeth suggested than Hirst’s spot paintings are, in fact, “original.” He wrote, in connection with an article entitled, Tired of Damien Hirst Spot Paintings? A Brief Guide to Other Spot Paintings, “For the record, this article is not meant to suggest for one moment that Mr. Hirst’s spot paintings are unoriginal or uninspired, or to engage in that tired debate about who made the first spot painting. We know that there is nothing new under the sun: Mr. Hirst found a fertile field in spots and prospered, like artists before and after him.”

Hirst, who started his spot painting series in 1986 and created one of his most works, Apotryptophanae, in 1994, is something of a serial cease and desist sender, and not surprisingly, he has been known to claim rights in his spot paintings.In 1999, for instance, his legal team threatened to initiate legal action against British Airways’ Go airline when they used a polka dot design in an advertising campaign.

Taking all of the aforegoing into account, we can likely assume that Hirst may maintain some level of copyright protection – albeit unregistered in the U.S. – in his spot paintings, which raises the question of whether Okonma’s wares infringe those rights. The test for determining this depends on where this hypothetical case is heard, as the tests vary by court. (Note: Most courts use one of two tests: the copying/unlawful appropriation test associated with the Second Circuit or the extrinsic/intrinsic test associated with the Ninth Circuit). What we do know for sure, though, is that a jury would have to find that the design adorning Okonma’s garments is “substantially similar” to Hirst’s print.

Given that the colors of the polka dots differ between Hirst’s design and Okonma’s (Okonma uses only six colored polka dots, whereas Hirst uses roughly 15 different colors) and that the order of the polka dots differs, as well (the order of Hirst’s polka dots is admittedly random, whereas Okonma’s follows a set pattern), a jury may find them to be different enough to shield Okonma from liability. However, since the fact that the vast majority of cases never make it to trial (and since this case is still merely a hypothetical one at this point), we will likely never know how a court would rule on this one. If we know anything, though, given Hirst’s penchant for legal threats, though, Okonma might be getting a letter in the mail in the near future.